IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-60612

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

RICHARD BUCKMAN,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 1:07-CR-120-1

Before DEMOSS, STEWART, and ELROD, Circuit Judges.

PER CURIAM:

*

Richard Buckman appeals the sentence imposed following the revocation

of his supervised release subsequent to his convictions for two counts of willfully

failing to file federal income tax returns. The district court revoked both terms

of Buckman’s supervised release, and it sentenced Buckman to 10 months of

imprisonment on each revocation, the sentences to be served consecutively for

a total sentence of 20 months of imprisonment.

United States Court of Appeals

Fifth Circuit

F I L E D

February 22, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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No. 10-60612

Buckman argues that the sentence was substantively unreasonable. He

asserts that while the sentence for each revoked term of supervised release was

within the advisory guidelines range, the district court’s ordering that the

sentences run consecutively made his sentence a 20-month sentence that was

effectively twice as high as the top of the guidelines range. He maintains that

the sentence was unreasonable because it was two and a half times greater than

the sentence for his original convictions and his original offenses were more

serious than his supervised release violations. He contends that his sentence

was greater than necessary to satisfy the goals of 18 U.S.C. § 3553(a) because he

did not abscond, because he communicated well with his probation officer,

because it was not necessary to provide for adequate deterrence, because it was

not necessary to protect the public, and because it did not account for the need

he had for educational or vocational training. Buckman concludes “that the

district court committed reversible error by misapplying the § 3553(a) factors.”

For the first time in his reply brief, Buckman argues that the explanation

for the sentence given at the revocation hearing was insufficient and that the

explanation for the sentence provided in the written judgment was insufficient.

As these arguments were not raised in Buckman’s initial brief, we do not

consider them. See United States v. Jimenez, 509 F.3d 682, 693 n.10 (5th Cir.

2007).

We review revocation sentences under “(a) both the ‘plainly unreasonable’

and the Booker unreasonableness standards of review or (b) the more exacting

Booker unreasonableness standard.” United States v. McKinney, 520 F.3d 425,

428 (5th Cir. 2008). However, because Buckman did not object to the sentence

as unreasonable in the district court, we review the sentence for plain error only.

See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007). To show plain

error, Buckman must show a forfeited error that is clear or obvious and that

affects his substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429

(2009). If he makes such a showing, we have the discretion to correct the error

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No. 10-60612

but will do so only if it seriously affects the fairness, integrity, or public

reputation of judicial proceedings. See id.

On revocation of supervised release, the district court may impose any

sentence that falls within the statutory maximum term authorized. McKinney,

520 F.3d at 427. While the 20-month total sentence exceeded the advisory

guidelines range, the total sentence was within the statutory maximum, the

sentence on each revoked term of supervised release was within the guidelines

range, and the district court had the authority to order that the sentences run

consecutively. See United States v. Gonzalez, 250 F.3d 923, 927-29 (5th Cir.

2001). Although Buckman maintains that his original offenses were more

serious than his supervised release violations, his original convictions were for

misdemeanor offenses while his supervised release violations included conduct

constituting a felony offense. See 18 U.S.C. § 1001; 26 U.S.C. § 7203. The

district court explained that it sentenced Buckman to 20 months of

imprisonment based upon the § 3553(a) factors to promote respect for the law,

to provide deterrence, and to protect the community because Buckman

intentionally violated the terms of his supervised release by failing to perform

community service and pay restitution, by leaving the judicial district after being

denied permission to travel by his probation officer, and by purposefully signing

false monthly reports. By arguing that the sentence was greater than necessary

and that the district court misapplied the § 3553(a) factors, Buckman is

essentially requesting that we reweigh the § 3553(a) factors, which we may not

do. See Gall v. United States, 552 U.S. 38, 51 (2007). Revocation sentences

exceeding the guideline range but not exceeding the statutory maximum have

been upheld as a matter of routine against challenges that the sentences were

substantively unreasonable. See United States v. Whitelaw, 580 F.3d 256, 265

(5th Cir. 2009). As the sentence did not exceed the statutory maximum, it did

not constitute plain error. See id.

AFFIRMED.

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